Autify’s Terms of Service
(FOR CUSTOMERS OUTSIDE OF JAPAN ONLY)
Autify’s Terms of Service (these “Terms”) set forth the terms and conditions concerning the provision of the Services (as defined below) and establishes the rights and obligations between you as an individual or on behalf of the company or entity that you represent (“you”) and Autify, Inc. (a corporation incorporated in the State of Delaware, U.S.A.(“Autify,” “we” or “us”). If you as an individual accept these Terms on behalf of your company or entity, you must have, and you represent that you have, full legal authority to bind your company or entity to these Terms.
These Terms are applicable to you if you are a non-resident of Japan or a non-Japanese company, an entity or individual located outside of Japan. If you are a resident of Japan or a Japanese company, entity or individual, the Japanese version of the terms of services (Autifyサービス利用規約) will apply to you.
THESE TERMS AND THE AGREEMENT BETWEEN US ARE SUBJECT TO BINDING ARBITRATION, WAIVER OF JURY TRIAL, AND CLASS WAIVER PROVISIONS AS SET FORTH BELOW.
LEGALLY BINDING CONTRACT
We may amend these Terms from time to time. Amendments will be effective upon posting such updated Terms and we encourage you to review them. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms as amended. If you do not agree to the updated Terms, you may not continue to access or use the Services and you should cancel your account as described in these Terms, cease use of the Services and any of pour software and other materials, and delete any of our software or other materials from your computer(s) and any other electronic devices on which it is installed or used.
- The following terms used in these Terms shall have the meaning set forth in each of the following items:
“Member” or “you” means any individual, corporation, or entity who has registered to use our Services in accordance with Section 2 (Registration and Execution of the Service Agreement).
- “Services” means (i) the service named “Autify” (in the event the name is changed for any reason, the equivalent service provided under the new name) that is provided in the form of a software, which streamlines and optimizes system developments, tests, and supportive tasks for companies, and (ii) other services pertaining thereto. We may add, change, or delete the contents or functions of the Services from time to time.
- “Service Agreement” means the agreement between you and us regarding the use of the Services as set forth further in Section 2(3) below.
- “Application” means either the information you fill in and send to us or the act of sending such information in order to commence the use of the Services.
- “IP Right(s)” means copyright, patent right, utility model right, design right, trademark right, trade secrets, and any other intellectual rights (including the right to acquire or apply for registration of such IP Rights).
- “User Information” means any of the following information:
- information sent to us by you in relation to the use of the Services (including, but not limited to, your name, email address, company information, employee information, information necessary to output corporate forms, such as documents, and other data);
- information created in relation to the use of the Services, such as usage records of the Services;
- information obtained as a result of using the Services.
2. Registration and Execution of the Service Agreement
- Those who wish to use the Services may apply to register for its use by agreeing to comply with these Terms and providing, in the way instructed by us, certain information designated by us (the “Registry Information”).
- If we decide to register the registration applicant (the “Registration Applicant”), we will complete such registration and notify such Registration Applicant.
- Following our acceptance of your registration, we may separately enter into Service Agreements with you in a form determined by Autify (which may, for example, be in the form of an online ordering process or separate written and executed agreement). The Service Agreement will set forth the agreed business terms between us (such as the details and terms of the Services subscription, the fees, and payment terms); all Service Agreements shall be subject to, and be deemed to have incorporated, these Terms and the content of the Application.
- We may refuse to register or re-register a Registration Applicant or terminate without penalty or charge any Service Agreement, without disclosing the reasons therefor, if we determine at any time that you fall under any of the following items:
- all or part of the Registry Information is false, incorrect, or insufficient;
- we determine that the Registration Applicant runs or supports running a website or service that is either similar to or competitive with the Services;
- we determine that the Registration Applicant has breached an agreement with us in the past or is in a relationship with anyone who has done the same;
- the Registration Applicant has been subject to any measure set forth in Section 12 (Cancellation of Registration);
- the Registration Applicant is a minor, adult ward, person under receivership, or person under assistance and has not received consent from his/her statutory agent, guardian, receiver, or assistant;
- the Registration Applicant provides websites or services that include expressions we determine in our sole discretion to be inappropriate as for being violent, sexual, or otherwise against public policy; or
- we otherwise determine that such registration is inappropriate.
3. Change in Your Registry Information
If any change occurs in your Registry Information, you shall promptly notify us of such change in the way we instruct you.
4. Management of Your Password and User ID
- You shall manage and store your password and user ID for the Services appropriately, at your own responsibility. You may not rent, sell, transfer or otherwise allow a third party to use your user ID and password.
- You become fully responsible for, and thus we shall not be liable for, any damage caused by your password or user ID for the Services being used by anyone other than you; provided, however, that this shall not apply if such damage is due to reasons attributable to us.
Upon using the Services, you may not conduct acts that fall under any of the following items:
- Breach of applicable laws or the Service Agreement;
- Acts related to criminal acts or otherwise against public policy;
- Infringement of the IP Rights, portrait rights, rights to privacy, reputation, or other rights or interests of Autify, any Member, other users of our Services, or any third party;
- Sending us or causing us to acknowledge through our Services any information that:
- includes violent or cruel expressions;
- includes any computer virus or other harmful programs;
- includes any expression that may defame or discredit Autify, any Member, other users of the Services, or any third party;
- includes lewd expressions;
- includes expressions that promote discrimination;
- includes expressions that encourage suicide or self-injurious behavior;
- includes expressions that promote the inappropriate use of drugs;
- includes antisocial expressions;
- requests to spread such information to third parties such as chain mails;
- includes offending expressions.
- Acts that may interfere with the operation of our Services (including, but not limited to, acts that place a disproportionate burden on the network or system of our Services, unauthorized access, and sales activities);
- Using someone else’s user ID or password;
- The same person registering more than one Member even though it is not necessary;
- Collecting information of Members or other users of our Services;
- Acts that cause disadvantage, damage, or discomfort to Autify, any Member, other users of our Service, or any third party;
- Acts that directly or indirectly induce or facilitate any of the acts referred to in the preceding items; or
- Any other acts that we deem inappropriate in our sole discretion.
6. Your Responsibilities
It is your responsibility to prepare an appropriate work environment that is required to use our Services (including, but not limited to, internet access, hardware, such as personal computers, and software, such as web-browsers) at your own expense and thus we are not responsible for preparing such environment.
7. Service Fees and Payment Method
- The service fees for our Services shall be as separately determined by Autify. Autify may change its service fees at any time in its sole discretion. Any changes to service fees will apply to all new Service Agreements and orders and renewals of previously executed Service Agreements and orders.
- You shall pay the service fees applicable to your plan prescribed in the Service Agreement by the payment due date set forth in the invoice (including those issued electronically) we provide to you (or in the case such payment is made by credit card, on the date separately designated by us) using the payment method separately designated by us. You are required to bear bank charges and any other fees incidental to paying the service fees.
- In the event any changes are made to the Service Agreement during its effective term (including when adding certain services, functions, or optional services), the modified service fees shall be charged from the month such change is made.
- In the case of the preceding paragraph, we will issue you invoice(s), at our own discretion, in either (a) one lump sum payment, or (b) in equal monthly installments until the end of the contract term with invoices for each monthly installment to be issued each month. You shall pay service fees in accordance with the invoice(s) issued by us pursuant to this paragraph.
- All fees are non-refundable and payable in US dollars. You shall also pay all sales, use, consumption, value-added and other taxes, tariffs and duties of any type assessed against Autify except for taxes on Autify’s income. Autify may disable your access to the Services in the event of a failure to pay. Any payments not made by the applicable due date shall incur late charges at the rate of the lower of 1.5% interest per month or the highest rate allowed by law.
8. Ownership of Rights; Restrictions
- The Services and all IP Rights pertaining to our Services including all related materials, outputs and executables (IP Rights pertaining to our Services shall be referred as “Services-Related IP Rights” hereunder) are and shall remain the exclusive property of Autify or its licensors. The license to use our Services including your access to them granted to you under the Service Agreement and these terms does not grant or convey to you any rights to the Services or the Services-Related IP Rights except for the limited license expressly granted to you herein or the Service Agreement.
- You retain ownership of any and all rights pertaining to your User Information.
- You are solely responsible for ensuring that you have any and all other third party rights and licenses necessary for you to use the Services.
- Autify shall own all right, title and interest relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, using the Services. You hereby agree to make all assignments necessary to accomplish the foregoing ownership.
Without limiting any other restrictions and limitations in these Terms on your use of the Services, you may not: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble the Services or any content appearing therein except as may be permitted by applicable law; (ii) remove any copyright, trademark or other proprietary notices from any portion of the Services; (iii) sell or resell, license, distribute, leases, transfer, publicly display or perform, stream, transmit, broadcast or otherwise exploit the Services except as expressly permitted by Autify in these Terms; (iv) link, frame or mirror any portion of the Services; (v) interfere with or violate any third party or other user’s right to privacy or other rights, including copyrights and any other intellectual property rights of others, (vi) harvest or collect personal information about other users of the Services or engage in any scraping, indexing, surveying or other data mining of the Services; (vii) interfere with or disrupt the operation and/or functionality of the Services or attempt to gain unauthorized access to or impair any aspect of the Services or its associated systems or networks; (viii) use the Services for any illegal, immoral or unauthorized purpose; or (ix) use the Service for non-personal or commercial purposes without Autify’s express prior written agreement.
9. Use of User Information
- You give us a worldwide, free of charge and perpetual license to use your User Information. This license continues even after the Service Agreement is terminated or expires. We shall use your User Information for the limited purposes of upgrading and improving the quality, function, and performance of our Services. We shall remove any content of your User Information if you ask us to do so with just reason or if otherwise required by applicable law.
- You represent and warrant that you have full capacity and necessary rights to perform data registrations or otherwise submit any User Information to us and that such User Information does not infringe upon any rights of third parties.
- Notwithstanding the provisions of each of the preceding paragraphs, we may indicate a Member’s name, logo, service mark, trademark, or other brand of such Member related thereto on our website or in marketing materials we distribute to the public.. You give us a worldwide, free of charge and perpetual license to use your name, logo, service mark, trademark, or other brand of yours related thereto to the extent necessary. In addition, we may request you to cooperate in our sales promotion activities to a commercially reasonable extent.
10. Customer Support
- Autify, its employees, and third parties, such as Autify’s subcontractors who bear confidentiality obligations may, to the extent necessary to properly provide you the Services and deal with defects or issues with the Services, use your User Information to check and use the services and websites you provide. Information obtained through checking and using your services and websites as set forth in this Section may be used by us as User Information pursuant to Section 9 (Use of User Information).
- We will provide customer support (“Support”) in accordance with the Service Agreement. The scope and hours of Support are set forth in the Basic Support Information of Autify’s Help Center.
Autify for Web: https://help.autify.com/docs/en/basic-support-information
Autify for Mobile: https://help.autify.com/mobile/docs/en/basic-support-information
- Notwithstanding the provisions of the preceding paragraph, we shall not be obliged to provide any Support for any of the following items. Expenses for such items shall be separately charged to you by Autify and you shall pay such expenses as requested:
- support concerning the specifications or use of any services that are provided by third parties in order to use our Services;
- support concerning the specifications or use of any services or software maintained by a Member;
- handling or operating tasks on your behalf when you use our Services.
11. Contract Term of the Services and its Automatic Renewal
- The contract term of the Services shall be separately selected by you and approved by us after you complete your registration through the Application and enter into each Service Agreement.
- Unless we or you otherwise indicate our/your intention to the other party at least two (2) weeks prior to the expiration of the contract term of each Service Agreement in a manner prescribed by us, to the extent permitted by law the contract term of each Service Agreement shall be automatically renewed on the same terms and conditions as those of the previously-executed Service Agreement; provided, however, that the service fees for renewal terms shall be Autify’s then-current list prices and not any discounted or promotional pricing which may have applied prior to the renewal.
12. Cancellation of Registration
- We may, without providing you prior notice , remove any of your User Information, suspend providing you with our Services, deregister you, or terminate the Service Agreement with you if you fall under any of the following items:
- you breach any provision of the Service Agreement or these terms;
- we find there is any false information in your Registry Information;
- you do not respond to us within fourteen (14) calendar days after we contact you for your response via a reasonable communication channel, such as email, phone, or chat applications;
- you fall within any item of Section 2(4) (Registration and Execution of the Service Agreement), Section 13(1) or (2) (Termination of the Agreement and Withdrawal from Membership);
- you become insolvent, or subject to a disposition for suspension of payments, or a petition for commencement of bankruptcy proceedings, commencement of civil rehabilitation proceedings, commencement of corporate reorganization proceedings, commencement of special liquidation, or any other similar proceedings; or
- we decide that it is not appropriate to allow you to use our Services or to have you as a Member.
- We shall not be responsible for any costs, expenses, losses or damages you incur by our action taken in accordance with this Section.
13. Termination of the Agreement and Withdrawal from Membership
- We may terminate any Service Agreement and our Services without prior notice to you if we determine that you have breached any provisions of Section 5 (Prohibitions), 8 (Ownership of Rights), or 17 (Confidentiality).
- Either the Member or Autify may terminate the Services and any Service Agreement without prior notice to the other party if the other party falls under any of the following:
- the other party breaches the Service Agreement, and fails to cure such breach within thirty (30) days (or, in the event of non-payment by you, if you fail to pay within ten (10) days of the due date);
- The other party files for, or is subject to the filing of, bankruptcy proceedings or is, or in Autify’s judgment, may become, insolvent; any event similar to the events set forth in the items (b) through (e) that impairs either party’s credibility occurs;
- the other party is subject to suspension or cancellation of licenses/approvals necessary for its business operations by a competent authority;
- the other party resolves to dissolve or sell all or a material portion of its business;
- an event arising through which it becomes difficult for the other party to perform any of its obligations under the Service Agreement;
- the other party engages in any acts contrary to public policy; or
- a material event renders it difficult for the other party to comply these Terms, the content of the Application or matters regarding the use of our Services agreed between you and Autify.
- Even during your use of our Services, you can terminate all or a part of the Service Agreement at any time by giving us two (2) weeks’ prior written notice.
- In the event of the termination of the Service Agreement, your obligations to us, including payment of any service fees for Services performed, will automatically accelerate and shall be immediately and completely performed. Further, we will not, in any event, return any service fees received from you. Moreover, you will be required to pay, within thirty (30) days of termination, the full amount of the balance due for the service fees for the full Contract Term immediately before the termination.
- The handling of User Information after the expiry or termination of the Service Agreement will be in accordance with Section 9 (Use of User Information).
14. Modifying / Terminating Services
- We may suspend or interrupt the provision of all or part of the Services without prior notice to you if:
- it becomes reasonably necessary to inspect or maintain the computer systems related to the Services;
- computer or communication lines are suspended for reasons not attributable to us;
- the operation of the Service becomes impossible due to a Force Majeure Event; or
- there is any other event that we deem it necessary to suspend or discontinue the Services.
- We may amend the details of our Services at our sole discretion, and we may suspend or stop any Service altogether. In the event that we decide we stop providing our Services, we shall make commercially reasonable efforts to give you prior notice.
- We shall not be responsible for any damages you may incur by any act we take under Section 14(1) or (2).
- Except for the cases in Section 14(1) and (2), if the Services are suspended due to a reason attributable to our willful misconduct or gross negligence, we shall refund all or part of the service fee for the relevant month based on consultation between you and us.
15. No Warranties for Services; Limitation of Liability
- AUTIFY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Further, Autify makes no representation, warranty or guaranty regarding the suitability, safety, accuracy, reliability, timeliness, or security of the Services or that your access to the Services will be uninterrupted or error-free. Autify does not warrant, endorse or guarantee any third-party products or services including, without limitation, the availability or any necessary content, data, or connections with servers or other networks operated by third parties.
- TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, IN NO CASE SHALL AUTIFY (INCLUDING ITS AFFILIATES AND ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, AND LICENSORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS OR LOST DATA, WHETHER IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF ACTION, ARISING OUT OF OR RELATED TO THE SERVICES (INCLUDING, BUT NOT LIMITED TO, YOUR ACCESS OR INABILITY TO ACCESS THE SERVICES OR THE INTERRUPTION, SUSPENSION, TERMINATION OR FAILURE OF THE SERVICES, IN WHOLE OR PART) AND EVEN IF AUTIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AUTIFY’S TOTAL LIABILITY TO YOU IN CONNECTION IN ANY WHAY WHATSOEVER WITH THE SERVICES FOR ALL DAMAGES, LOSSES, EXPENSES AND CAUSES OF ACTION EXCEED THE FEES PAID BY YOU TO AUTIFY IN THE PRECEDING TWELVE (12) MONTHS.
You agree to indemnify, defend and hold harmless Autify and its affiliates and their officers, directors, shareholders, employees, contractors and agents from any claims, demands, losses, costs, liabilities and expenses (including attorneys’ fees) relating to or arising out of (i) your use, or inability to use, the Services; (ii) your breach of any of the Service Agreement or any of these Terms; (iii) your violation of any third party rights or any damages you inflict on any third party in connection with your use of the Services; (iv) Autify’s use of any data or information you provide; (v) your violation of any laws or regulations; or (vi) your infringement or violation of any intellectual property rights or other rights of a third party. You hereby agree to fully cooperate as reasonably requested in the defense of any claim. Autify reserves the right to alone assume the defense and control of any claim that is subject to indemnification by you.
- For the purpose of these Terms, “Confidential Information” means any information disclosed to us or you by the other party in connection with the Services, either in writing or orally, except for information that is specified as not being Confidential Information by the disclosing party at the time of disclosure (hereinafter, the person who provides or discloses such information shall be referred to as the “Disclosing Party”, and the person who receives such provided or disclosed information from the Disclosing Party shall be referred to as the “Receiving Party”). Confidential Information also includes the information set forth in this paragraph that has been disclosed prior to the execution of the Service Agreement. Provided, however, that the following information shall be excluded from Confidential Information:
- information that is in the public domain or the Receiving Party possesses at the time of disclosure;
- information that enters the public domain without fault of the Receiving Party after disclosure;
- information that the Receiving Party receives from a third party without confidentiality obligations; and
- information that the Receiving Party independently develops without referring to the Confidential Information.
- The Receiving Party shall use the Confidential Information only for the Services, and if the Confidential Information is software, the Receiving Party shall not disassemble, decompile, reverse engineer or otherwise analyze the source code of such software, or take any action that may lead to such analysis.
- The Receiving Party shall not provide, disclose or divulge Confidential Information to any third party without the written consent of the Disclosing Party, and shall keep Confidential Information clearly separated from other information with the care of a good manager. However, the provisions of Section 9 (Use of User Information) shall supersede the provisions of this Section.
- If Confidential Information is leaked due to reasons attributable to the Receiving Party, the Receiving Party shall immediately contact the Disclosing Party and receive instructions from the Disclosing Party. In such case, the Receiving Party shall take all measures deemed reasonably necessary to regain possession of the Confidential Information and prevent its further unauthorized use or, at the request of the Disclosing Party, cooperate with any measures taken by the Disclosing Party.
- Notwithstanding the provisions of this Section, the Receiving Party may disclose the Confidential Information only to its officers, employees or contractors, and its attorneys, certified public accountants, tax accountants and other outside experts who assume legal confidentiality obligations (the “Receiving Party’s Officers and Employees”) and only to the extent necessary to perform its rights or obligations under the Service Agreement. However, at the time of disclosure, the Receiving Party shall clearly indicate to the Receiving Party’s Officers and Employees that such information is Confidential Information, and cause the Receiving Party’s Officers and Employees to assume the same obligations as those assumed by the Receiving Party under the Service Agreement. At the time of retirement or termination of outsourcing of such Receiving Party’s Officers and Employees, the Receiving Party shall execute an agreement with such Receiving Party’s Officers and Employees to the effect that such Receiving Party’s Officers and Employees shall continue to assume such confidentiality obligations even after their retirement or termination of outsourcing. Any breach by such Receiving Party’s Officers and Employees of their obligations under this item shall be deemed to be a breach of the Service Agreement by the Receiving Party, and the Receiving Party shall be fully liable for any such breach.
- Notwithstanding the provisions of this Section, the Receiving Party may disclose Confidential Information pursuant to any law, order, demand or request of a court or governmental agency to the extent that such disclosure is compelled by such order, demand or request. However, in the event of any such order, demand or request, the Receiving Party must promptly notify the Disclosing Party thereof and provide cooperation necessary for the Disclosing Party to lawfully avoid or minimize the disclosure of the Confidential Information.
- If the Receiving Party intends to reproduce any document containing Confidential Information, it shall obtain the prior written consent of the Disclosing Party. Such copies shall also be included in the Confidential Information.
- At the time of termination of the agreement relating to the Services or whenever requested by the Disclosing Party, the Receiving Party must return or dispose of all documents containing the Confidential Information without delay in accordance with the instructions of the Disclosing Party.
18. Force Majeure
Neither party shall be liable to the other for any failure or delay in the performance of its obligations under the Service Agreement due to causes beyond its reasonable control (including, but not limited to, natural disasters, war (with or without declaration of war), riots, terrorism, serious illnesses, the enactment, amendment or repeal of laws, regulations or rules, acts of governments or governmental agencies, orders issued by public authorities, labor disputes, and system malfunctions that we are unable to reasonably anticipate or avoid; “Force Majeure Event”). However, the foregoing shall not apply to your obligation to pay the service fee.
- Notices from Autify to you shall generally be made by e-mail to your e-mail address registered at Autify (“Registered E-Mail Address”). You must correctly maintain the Registered E-Mail Address in order to receive notices from us. If you become unable to receive notices from us for any reason, you must promptly change or give notice of your Registered E-Mail Address in a manner designated by Autify. In no event shall we be liable for any damages incurred by you due to failure to receive any notice from us.
- Notices from you to Autify must be made by sending an email to us at [email protected].
20. Government Use
If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Services are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Services and/or the software on which it runs is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Services by the Government shall be governed solely by these Terms.
21. Export Controls
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Services or any of its software or other documentation or materials in violation of any such restrictions, laws or regulations. By downloading or using the Services and any such software, materials or documentation, you agree to the foregoing and represents and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
22. Surviving Provisions
The provisions of Sections 7 (Service Fees and Payment Method) (to the extent any amounts are still owing), 8 (Ownership of Rights; Restrictions), 9 (Use of User Information), 13 (Termination of the Agreement and Withdrawal from Membership), 15 (No Warranties for Services; Limitation of Liability), 16 (Indemnification), 23 (Governing Law; Binding Arbitration; Class Action Waiver), and 24 (General) shall survive the termination of the Service Agreement (regardless of the reason for such termination). The provisions of Section 17 (Confidentiality) shall be effective for three (3) years after the termination of the Service Agreement.
23. Governing Law; Binding Arbitration; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND AUTIFY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND AUTIFY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND AUTIFY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. AUTIFY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
IF YOU ARE A CONSUMER (AS DEFINED BELOW), FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
Governing Law; Jurisdiction. The Service Agreement and these Terms are governed by and shall be construed in accordance with the laws of the State of California, without giving effect to any conflicts of laws principles. Notwithstanding the foregoing, to the extent permitted by applicable law, this Section will be governed by the Federal Arbitration Act, without regard to state or foreign law. Any claim or dispute either of us may have against the other that is not subject to arbitration must be resolved by a court located in San Francisco County, California. We both agree to submit to the personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of litigating all such claims or disputes that are not subject to arbitration.
BINDING ARBITRATION. YOU AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR IN ANY WAY RELATING TO THE SERVICE AGREEMENT, THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION BETWEEN YOU AND AUTIFY, NOT IN COURT, IN ACCORDANCE WITH THESE TERMS, EXCEPT THAT: (I) EITHER PARTY MAY ASSERT QUALIFYING CLAIMS IN SMALL CLAIMS COURT, AND (II) AUTIFY MAY SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT ACTUAL OR THREATENED INFRINGEMENT OR MISAPPROPRIATION OF OUR IP RIGHTS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, BOTH PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
Arbitration Procedure (Consumers and Businesses). All claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA. Such rules differ if you are a consumer or a business as further described below.
If you are an individual using the Services for your personal or household use, you are a “Consumer,” and the then-current version of the AAA’s Consumer Arbitration Rules, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Autify:
(1) YOU AND AUTIFY AGREE THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND AUTIFY ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
(2) For any arbitration you initiate, you will pay the consumer filing fee, and Autify will pay the remaining AAA fees and costs. For any arbitration initiated by Autify, Autify will pay all AAA fees and costs.
(3) For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, and (iii) if the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator.
(4) If you or Autify submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Autify agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Autify agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
(5) The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
If you are NOT a “Consumer” (as defined above), you are a “Business” and the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Autify:
(1) YOU AND AUTIFY AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND AUTIFY ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
(2) Any in-person appearances will be held in San Francisco County, California.
(3) The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
(4) You and Autify agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Autify agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
One Year to Assert Claims. To the extent permitted by law, any claim or dispute by you or Autify arising out of the Terms, the Service Agreement or the Services, in each case other than claims related to IP Rights, must be filed within one (1) year after such claim or dispute arose; otherwise, the claim is permanently barred, which means that you and Autify will not have the right to assert the claim.
Opting Out of Arbitration (Consumers Only). You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by providing us notice of your opt-out via email at [email protected]. In order to be effective, the opt-out notice must include your full name, and mailing address, and email address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with the paragraph above entitled ” Governing Law; Jurisdiction.“
Rejection of Future Arbitration Changes. You may reject any change we make to this Section (except address changes) by personally signing and sending us notice within thirty (30) days of the change via email at [email protected]. If you do, the most recent version of this Section before the change you rejected will apply.
Severability. If any part of this Section including but not limited to the class action waiver above is found to be unenforceable or illegal to all or some portions of a dispute between the parties, then this section will not apply to such portions. In that case, those portions will be severed and resolved in a court of law and the remaining portions shall be resolved by arbitration. If any other provision of this section is found to be unenforceable or illegal, then that provision will be severed and the remainder of this section will continue in full force and effect.
These Terms together with any applicable Service Agreement constitute the entire agreement between you and Autify related to the Services and they supersede all prior or contemporaneous communications, agreements, and proposals, whether electronic, oral or written, between you and Autify related to the Services in their current or any prior form. You may not assign these Terms or the Service Agreement without Autify’s prior written approval. These Terms and the Service Agreement, and the rights, benefits and obligations contained therein, are fully assignable by Autify and will be binding upon and inure to the benefit of Autify’s successors and assigns. No agency, partnership, joint venture, or employment relationship between you and Autify is intended or created by these Terms or any Service Agreement. Any failure of Autify to exercise or enforce any right or provision of these Terms or a Service Agreement shall not constitute a waiver or relinquishment to any extent of such right or provision. Any waiver of any right or provision of these Terms or a Service Agreement must be in writing. Subject to the Severability provision of the “Governing Law; Binding Arbitration; Class Action Waiver” section above, if any part of these Terms or a Service Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed severed and superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. Autify’s provision of the Services and these Terms are subject to laws and legal process and nothing contained in these Terms limits Autify’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Services. The headings in these Terms are for convenience only and have no legal or contractual effect.
If you have questions regarding these Terms, please contact us at [email protected].